Sunday, November 1, 2009

From Roger Fitch and our friends down under at Justinian

Roger Fitch Esq • October 28, 2009

Our Man in Washington

A few big cases get a hearing despite US Supremes’ shrinking docket … Latest notes from the Guantánamo turnstile … Government dismayed at decision to extend habeas to US prisoners held in Afghanistan jails … Obama’s “terror” policy looks strikingly similar to George Bush’s

imageThe new Supreme Court of the UK opened this month.

It has a user-friendly website and there’s even a UKSC blog patterned on Scotusblog.

US media made the doubtful claim that the new British court was modelled on the old American one, but is there really so much to admire?

Our court has a narrow, shrinking docket of around 80 cases out of 8,000 petitions.

At the start of its October term, it declined to hear 2,000 cases.

The US cable network CSPAN just published a poll on what Americans know about the court.

It’s not a lot.

Fifty-two percent didn’t know the CJ had to be a lawyer.

Despite these flaws, major constitutional cases have been accepted.

For example, Sullivan v Florida, which considers that state’s sentences to life without parole for children.

Joe Sullivan was 13-years-old and committed no murder.

There will also be important “national security” cases.

Despite Mr Obama’s efforts to moot the appeal of the Guantánamo Uighurs, Kiyemba v Obama, this crucial case will be heard by the Supreme Court.

The court will also likely hear the Kiyemba II case.

The government’s appeal of the “torture photos” case, however, will probably not proceed.

A new law allows the Defence Secretary to block the release of uncongenial photos regardless of FOI regulations.

Videos of animal torture are another matter.

US v Stevens, one of four big cases profiled by Liliana Segura, has already been argued before the Supreme Court .

* * *

The oral argument in Stevens ended up discussing human sacrifice.

That sacrifice can sometimes result from human torture and human torture remains very much in the news.

The ACLU, for example, has a dedicated Torture Report web site, and the National Security Archive has an online Torture Archive.

imageThe Public Record, by contrast, has a handy list of 50 people suitable for war crimes prosecutions, including a number of torture abettors.

Torture is in the courts, too. Important rulings were issued on both sides of the Atlantic on the same October day.

In Washington, Judge Royce Lamberth (snap) accepted the CIA’s claims that no torture was being concealed in FOI documents sought by the ACLU.

Lamberth refused to even look at the documents in question.

While a US judge was ruling that Guantánamo detainee Khalid Sheikh Mohamed’s torture could be kept secret, a UK court ruled that the torture of former Guantánamo detainee Binyam Mohamed must be disclosed by MI5.

The Guardian has more.

* * *

imageBy flouting the orders of the presiding Guantánamo judge, Thomas Hogan (pic), Obama’s lawyers have drawn a contempt motion.

Slate has an article on other DoJ obstructions, e.g. that of decisions by habeas judges who ordered the release of Guantánamo prisoners.

A few of these rulings have been implemented.

In my last post I reported that two Kuwaitis had been ordered released by Judge Colleen Kottar-Kotelly and how the Obama administration had done nothing to repatriate them.

The return of the Kuwaitis is sought by their government so there is no impediment to their return.

On October 8, one of the Kuwaitis, Khalid Al-Mutairi, was sent home, although the Pentagon continues to ignore the court’s order for the other man, Fouad Al-Rabiah.

Now Al-Rabiah’s lawyers have filed contempt charges against the Secretary of Defence and the Guantánamo commander.

The motion is here.

Mr Obama also obeyed a court order for the release of a Yemeni feared radicalised by US mistreatment.

Another Guantánamo decision has also been followed – the order of Judge Rosemary Collyer for the release of video tapes in Al-Qahtani.

The DoJ provided a letter to Collyer admitting to the existence of this torture evidence, already conceded in the ACLU’s FOI.

Al-Qahtani, you may recall, is the detainee whose “war crimes” case was dismissed by the Military Commissions’ Convening Authority, Susan Crawford, on the basis that torture had occurred.

ProPublica has Guantánamo updates here, and here.

Guantánamo’s civilian lawyers are fighting their own battle against the government.

Tom Wilner is suing the National Security Administration on behalf of 23 lawyers whose communications were monitored.

An appeal is underway in the 2nd Circuit.

* * *

imageIn the recent Al Maqaleh case (see my April 13 post), Judge John Bates (pic) extended habeas to prisoners the US brings from other countries and jails in Afghanistan.

The decision is on appeal in the DC circuit.

In a Bush-like feint to help its appeal, the government promised new rights for Bagram prisoners.

The Pentagon claims the procedures resemble a Geneva “Article 5” hearing (AR190-8 under the US Army regs), but it’s really nothing more than a restaging of the discredited Combat Status Review Tribunals from Guantánamo.

Lawyers for the Bagram detainees can detect no change of policy.

The ACLU has meanwhile sued the CIA and Pentagon for a response to its FOI request for Bagram documents, e.g. the identity and nationality of prisoners.

Jurist has more.

* * *

It’s not only Bagram where Mr Obama’s “terror” policy mimics George Bush.

ProPublica has compiled a revealing comparison of Bush and Obama “counter-terrorism” approaches.

Daphne Eviatar finds Obama tracking Bush in the torture cases, while Firedoglake blog sees a similar Bush echo in Obama’s “new” state secrets policy.

Both the New Statesman and the New York Times have commented on the converging policies of Barack Obama and George Bush.

* * *

imageThe university town of Amherst, Massachusetts, has offered to take two Guantánamo detainees – the Russian Ravil Mingazov, a former ballet dancer, and the Algerian Ahmed Belbacha, a former UK resident.

Neither can return safely to his home country and Belbacha is the only former UK resident refused by the British.

Perhaps Amherst wants to atone for the sins of its namesake, Field Marshal Jeffery Amherst, (1717-1797).

Baron Amherst (pic) was a prescient and early advocate of biological warfare, reputedly supporting the practice of giving smallpox-infected blankets to the native Americans.

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